Madanlal vs Surajbai and others

N.K. Mody, J.

Being aggrieved by the judgment dated 29-11-2008 passed by XX Additional Sessions Judge, (Fast Track), Indore in Civil Regular Appeal No. 48/07 and 49/07 whereby the judgment dated 27-4-2005 passed by XIV Civil Judge, Class-I, Indore in Civil Suit No. 336-A/03 whereby the suit filed by respondent Nos. 3 and 4 was dismissed, was set aside and decree was passed in favour of respondent Nos. 1 and 2, the present appeal has been filed.

Short facts of the case are that the respondent Nos. 3 and 4 (Satyanarayan and Champalal) filed a suit on 25-1-1999 against the appellants and respondent Nos. 1 and 2 for declaration, partition and permanent injunction alleging that the respondent Nos. 3 and 4 and the appellant and deceased Ramnarayan are the sons of deceased Kashiram, who has died in the year 1960. It was alleged that respondent Nos. 1 and 2 are legal representatives of deceased Ramnarayan, who happens to be brother of respondent Nos. 3 and 4 and the appellant. In the suit it was alleged that all the four brothers sold their ancestral property to one Ramchandra son of Bhagwan and purchased the property from Kanhaiyalal in the year 1996 in the name of all the four brothers. It was alleged that the property which was purchased was numbered as 59/2 situated at Mod Mandir Gali, Hatod, District Indore. It was alleged that the property which was purchased is the suit property having width of 20 ft. and length of 75 ft. It was alleged that the suit property was the property of undivided joint Hindu family and after purchase of the property all the four brothers were residing in the suit property. It was further alleged that after some time Satyanarayan respondent No. 3 left the village with his family and shifted to Indore with an object to earn his livelihood. It was alleged that respondent No. 4 Champalal lived in the house up to 1996 and thereafter started to live separately. It was alleged that appellant Madanlal is having no male issue and is trying either to give the suit property to his daughter or to sale out and give the money to his daughter. It was further alleged that in the year 1995-96 appellant got his name mutated in his name without any intimation to the respondent Nos. 3 and 4. It was alleged that respondent Nos. 3 and 4 are having one half share in the suit property. It was alleged that since respondent Nos. 1 and 2 are not willing to join as plaintiff, therefore, they have been impleaded as defendants in the suit. It was alleged that earlier also respondent Nos. 3 and 4 filed a suit which was numbered as 10-A/97, but since partition was not claimed in the suit, therefore, the suit was withdrawn by the respondent Nos. 3 and 4 and the suit was dismissed as withdrawn. It was prayed that it be declared that the suit property is the property of undivided joint Hindu family, in which respondent Nos. 3 and 4 are having one half share. It was also prayed that appellant be restrained to alienate the property in any manner whatsoever.

The suit was contested by the appellant as well as by respondent Nos. 1 and 2. In the written statement filed by respondent Nos. 1 and 2 it was alleged that respondent Nos. 1 and 2 are also having l/4th share in the suit property. In the written statement filed by appellant it was alleged that it was not disputed that the suit property was purchased on 2-6-1961, but it was denied that the suit property was purchased from the nucleus of undivided joint Hindu family property. It was alleged that the suit property was purchased on 2-6-1961, while the property of the undivided joint Hindu family was sold on 4-12-1961. It was alleged that at that time Smt. Gyarasi Bai mother of appellant and respondent Nos. 3 and 4 of Ramnarayan was alive, who has taken the money and ran away. It was alleged that since the suit property was purchased by the funds of the appellant therefore, appellant got his name mutated in the record of municipality in the year 1971. It was alleged that respondents are having no right, title or interest in the suit property. It was alleged that the suit filed by respondent Nos. 3 and 4 is barred by time. It was prayed that the suit filed by respondent Nos. 3 and 4 be dismissed. Respondent Nos. 1 and 2 also filed counter-claim separately, wherein l/4th share was claimed.

After framing of issues and recording of evidence, learned trial Court dismissed the suit filed by respondent Nos. 3 and 4, against which an appeal was filed, which was allowed an decree of partition was passed, against which present appeal has been filed.

Mr. Virendra Joshi, Learned Counsel for appellant argued at length and submits that the impugned judgment passed by the learned Appellate Court is illegal, incorrect and deserves to be set aside. It is submitted that the suit property was purchased on 2-6-1961, while the property of undivided joint Hindu family was sole on 4-12-1961. It is submitted that the suit property was purchased prior to the sale of property of undivided joint Hindu family property, therefore, learned Appellate Court committed error in holding that the property is undivided joint Hindu family property. It is submitted that the learned Appellate Court also committed error in holding that the burden to prove that the suit property was self earned property was on the appellant. It is submitted that at the time when the suit property was purchased the respondent Nos. 3 and 4 were minor and out of love and affection, appellant got the name of respondent recorded as purchaser in the sale deed It is submitted that in the Municipal record also name of appellant was recorded as owner long before and before mutation public notice was issued but no objection has been filed by respondent Nos. 3 and 4. Learned Counsel placed reliance on a decision in the matter of Debaraj Pradhan vs. Ghanshyam, AIR 1979 Orissa 162 wherein Orissa High Court held that one who asserts acquisitions as joint family property must prove availability of sufficient nucleus. It was further held that in case of failure to do so, presumption of equality of interest has to be drawn. Reliance is also placed on a decision of this Court in the matter of Syed Tufel Ahemad vs. Syed Abrar Ahemad, 1960 MPU Short Note 204 wherein the property was purchased in the name of two brothers and the consideration was paid in full by one alone, it was held that applying the principle contained in section 45 of the Transfer of Property Act, the plaintiffs share in the property would be in proportion to the share of the consideration advanced by him. It was further held that it was neither pleaded nor proved that there was any contract to the contrary therefore, as no part of consideration was paid by the plaintiff, his share in the property would be nil.

On the strength of aforesaid decisions Learned Counsel for the appellant submits that the appeal filed by the appellant be allowed and the impugned judgment passed by the learned Appellate Court be set aside and the judgment passed by the learned trial Court be restored.

Mr. J. B. Dave Learned Counsel for respondent Nos. 1 and 2 and Mr. B. L. Joshi, Learned Counsel for respondent Nos. 3 and 4 submit that after due appreciation of evidence learned Appellate Court has decreed the suit filed by respondent Nos. 3 and 4. It is submitted that since the findings recorded by the learned Appellate Court are based on due appreciation of evidence, therefore, they cannot be disturbed by this Court in Second Appeal, as the findings are findings of fact. It is submitted that the appeal filed by the appellant be dismissed.

From perusal of the record it is evident that to prove the case respondent Nos. 1 and 2 who were plaintiffs filed the documents Ex. P/l to Ex. P/3, Ex. P/1 is the sale deed dated 2-6-1961 for consideration of a sum of Rs. 1,000/- , whereby the suit property was purchased in the name of Madanlal, Ramnarayan, Satyanaran and Champalal. Ex. P/2 is the copy of the order dated 5-1-1999 passed by Civil Judge, Class-II, Hatod, District Indore in Civil Suit No. 10-A/97 whereby the suit filed by respondent Nos. 3 and 4 was dismissed as withdrawn. Ex. P/3 is the certificate issued by Municipal Corporation, Hatod whereby the certificate has been issued by Municipal Corporation, Hatod to the effect that upon application submitted by the appellant, name of appellant has been mutated as owner of the suit property.

Apart from this respondent Nos. 3 and 4 has examined Champalal PW/1, Gordhan PW/2, Rajaram PW/3 and Durgasingh PW/4. While appellant has filed the documents Ex. D/1, which is valuation report and has examined himself as DW/1 and Husain Khan DW/2.

Undisputedly the suit property was purchased in the name of all the four brothers in the year 1961. In the sale deed Ex. P/1 it is mentioned that part of sale consideration i.e. Rs. 600/- were paid in advance, while the balance amount Rs. 400/- was paid at the time of execution of sale deed dated 2-6-1961. It is true that evidence is on record to the effect that the suit property was purchased on 2-6-1961, while undivided joint Hindu family property was sold on 4-12-1961.

Law laid down in the matter of Debaraj Pradhan (supra) is of no help to the appellant. In the said judgment Orissa High Court has held that the legal position is well settled that property standing in the name of individual members of a joint family would not constitute joint family property. One who asserts that such property takes the character of joint family asset has to show that the joint family had sufficient nucleus available for acquisition of the property and on such fact being proved, the burden shifts on to the individual member claiming the property to be his self acquisition to show that joint family nucleus was not utilized for the acquisition.

In the present case the suit property was purchased in the name of all the brothers and the appellant was claiming that the suit property was his self earned property, therefore, the burden was on the appellant to prove that in fact the suit property was self earned property and the name of brothers mentioned in the sale deed has no right, title or interest in the suit property. Similarly the law laid down in the matter of Syed Tufel Ahemad (supra) has no application to the present case on facts. Since the suit property was purchased in the year 1961 in the name of all the four brothers and the name of appellant was mutated in the record of Municipal Corporation, Hatod on the application of the appellant and appellant failed to prove that the mutation which took place in the name of appellant was after notice to the respondent Nos. 3 and 4, therefore, learned Appellate Court has committed no error in allowing the suit filed by the respondent Nos. 3 and 4.

In view of this, this Court is of the opinion that the learned Appellate Court after due appreciation of evidence has rightly held that the suit property was purchased by the appellant in his name and also in the name of his brothers from the funds of undivided joint Hindu family property. Hence, appeal filed by the appellant has no force and is hereby dismissed.